Saturday, June 27, 2015

The Supreme Court is an anomaly. It is neither "Supreme" (since it can overrule itself at any time, and also be overruled by statute or constitutional amendment) nor -- after yesterday's decision -- a court. Here is how Justice Scalia described it in his dissent to the same-sex marriage decision (Obergefell v. Hodges) -- it consists of

... nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

Yesterday, two Catholic and three Jewish Justices -- two Californians and three New Yorkers, four of them graduates of Harvard and one a graduate of Yale -- purported to discover a constitutional "right" to marriage. This maneuver preempted the various State legislatures who had been dealing with the question, and now makes it impossible for any legislature (Congress included) to change, modify or eliminate the "right", as it is a federal constitutional one. Unless and until the Supreme Court reverses its own decision, or until three-quarters of the States pass an amendment, it will stay as is.

The problem is that with this decision, the not-Supreme-and-not-a-court has set the stage for a monumental conflict between two constitutional rights: the right to exercise one's religion under the First Amendment, and the right to marry (which soon will have to be extended to polygamy and polyandry, since there are no limiting principles to the new "right" just discovered). And the worst part is that the only umpires for this impending conflict will be: you guessed it -- unelected lawyers in black robes.

What may come as news to some is that the United States has been there before -- and the results were not pretty.

Start with a church's tax-exempt status: it can be removed for teaching and holding principles that are contrary to federal law, as happened in the 1983 case of Bob Jones University v. United States, in which the Supreme Court upheld the IRS' refusal to continue the religious university's tax exemption because it forbade -- on sincerely held religious grounds -- interracial dating between its students. (Previously it had refused to admit blacks at all, but changed its policy in 1975 and adopted the ban on dating and marriage between races.)

The same reasoning used in Bob Jones can be used to deny a tax exemption to any church or religious institution that refuses to perform same-sex marriages. "[E]ntitlement to tax exemption depends on meeting certain common-law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." (Bob Jones, 461 U.S. 574, at 586; emphasis added.) The italicized language is broad enough to be adapted to the "public policy" as now established in federal constitutional law by the five Harvard-Yale lawyers in their black robes -- as the United States Solicitor General admitted in oral argument.

This is also why ordained clergy in ECUSA will be deluding themselves if they think that the "opt-out" clause that keeps them from being mandated to perform same-sex marriages is going to last beyond the next General Convention. By then, the Church will have to make it mandatory for all clergy to perform same-sex marriages if it wishes to retain its tax-exempt status.

And that is still not the end of it. As my British barrister colleague Neil Addison, writing in his Religious Law Blog(linked at the right, under "Juricannon"), reminds us, the unfettered power of the U.S. government can even extend to seizing and forfeiting the property of churches that advocate religious principles that violate federal law:

Could the same thing happen to Religious Organisations which disagree with same-sex marriage ? The legal precedents are there and certainly on the part of same-sex marriage advocates the will is there to attack and if possible destroy religion, in particular Christianity. Religions in the US are therefore facing a dangerous future where their freedom is far from guaranteed.

I agree with my colleague. There are absolutely no signs that the LGBT faction will be moderate in asserting the primacy of their newly-discovered constitutional right -- and the weak "assurance" given in Justice Kennedy's majority opinion provides no solace at all that those in black robes will protect anyone in the exercise of their religion.

9 comments:

I offer the thought that if the Church, general or particular, gets out of the marriage business per se - in other words leaves civil unions to the state, not allowing clergy to serve as government agents - and merely blesses those unions which it deems sacramental, then the problem goes away, eh?

True, SFitC, but the Episcopal Church (USA) wants to be in the same-sex marriage business. Therefore, as I say, it will have to make the performance of such rites mandatory in order to be sure of a continuing tax exemption.

It is ironic, is it not? In the space of a little more than a hundred years, we have gone from punishing churches for espousing polygamy to the point where we will soon be punishing those churches who do not celebrate polygamy.

Romney's great, and great grand nephews, and several score of 1st cousins twice/thrice removed came from these trials and tribulations. There were times of all-out war concerning these issues. Almost 40% of the Mormon population moved into Mexico, and to-day they constitute a decidedly positive presence there. They have long since inter-married, practice their ways and disciplines, and continue their building of tabernacles through the nation, especially in the north. In the capital city of Ciudad Victoria, Tamaulipas, they have two moderately large tabernacle compounds, very well constructed and well maintained. This is for a city of with two Roman Cathedrals, and as many as 40 Protestant Churches of various sizes and denomination.

The assaults by the Sodomites and the Gamoramites has been and will continue to be....never ending until either we collapse or they expire. Small Farmer's "guard trap" from the offensive manoeuvre in American football is a neat solution. It would require having sacraments delivered from now on only in private homes, and even that might be overturned as an alternative, because Jefferson may have written that Constitutional article on some pack page in invisible ink, leaving it as yet un-discovered. Our Rabbi's refreshingly correct use of the word "ironic" is dead on concerning yesterday's punishment of bigamy morphing into to-day's requirement to endorse the Sacracment of Holy Matrimony to two who have chosen to scoff at the meaning and purpose of said Sacrament.

Perhaps Justice Scalia, a Catholic from New York City, should ameliorate the ethnic and geographical imbalance on the Supreme Court by resigning.

The majority did not “discover a constitutional “right” to marriage”; rather, it applied the Fourteenth Amendment calling for equal justice under the law. Such a right cannot be granted or withheld on a state-by-state basis.

Polygamy and polyandry are irrelevant. There is a limiting principle, that of extending marriage equality to two consenting adults regardless of sexual orientation.

As a longtime supporter of marriage equality, I do not believe that churches should be forced to perform same-sex marriages. Rights in conflict, however, are one of the hallmarks of democracy. Anticipating such conflicts is surely not a reason to deny marriage rights to gay Americans.

Jeff, thank you - as always - for bringing your perspective here for testing in the line of fire. Your views will always be respected; nevertheless, you cannot expect a statement like this to go unchallenged: "The majority ... applied ... the Fourteenth Amendment calling for equal protection under the law."

The italicized portion of your quote is where the problem lies with your assertion. "Under the law" that had applied in the U.S. for more than 200 years until last Friday, marriage was understood as the union between a man and a woman - a husband and wife. In order to declare the "right" that you say was there all along, the majority first had to redefine what marriage was. And there is absolutely no authority in the Constitution or the Fourteenth Amendment for them to have done so: they simply found their new definition in the Zeitgeist, which is to say, they invented it out of whole cloth.

You do not, I notice, engage the main point: that under existing precedents, churches and religious institutions which refuse to recognize same-sex marriages will either lose their tax exemptions or even worse, be required to forfeit their property. Your claim that "marriage" is limited to just two people has no more basis in tradition than that it was only between a man and a woman. Throw out the tradition, as the Supreme Court has done, and there remains no tradition-based ground upon which to say that "marriage" can occur only between two people.

There may be a practice with regard to marriage that I believe is being implemented in the Sikh community in Britain and which could prove of much help if adopted by conservative religious entities in the U.S. and elsewhere.. I believe a member of the Sikh clergy in Britain will now perform a marriage rite for a man and a woman only in situations where the individuals involved have been married through the civil process prior to the performance of such rite. Although a departure from previous practice in this area, the above practice would seem practical and desirable for most conservative religious entities.

Strategically, I could see getting churches out of the legal union business. However, without research, I would think churches with policies and teaching against SS behavior could still be found "contrary to established public policy." The Bob Jones precedent appears quite broad.

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